IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Emmanuel T. Mohammed, :

Plaintiff, :

v. : Case No. 2:11-cv-469

 : JUDGE JAMES L. GRAHAM 

Michael Lofreso, et al., Magistrate Judge Kemp

:

Defendants. 

REPORT AND RECOMMENDATION

On May 31, 2011, plaintiff Emmanuel T. Mohammed, filed a

complaint and a request for leave to proceed in forma pauperis.

His affidavit reveals that he is unable to afford the filing fee

for a civil action. The Court must now screen his complaint

under 28 U.S.C. 1915(e) before determining whether to otder the

Marshal to serve the complaint. For the following reasons, it

will be recommended that this case be dismissed. 

I. 

28 U.S.C. §1915(e)(2) provides that in proceedings in forma

pauperis, "[t]he court shall dismiss the case if ... (B) the

action ... is frivolous or malicious [or] fails to state a claim

on which relief can be granted...." The purpose of this section

is to prevent suits which are a waste of judicial resources and

which a paying litigant would not initiate because of the costs

involved. See Neitzke v. Williams, 490 U.S. 319 (1989). A

complaint may be dismissed as frivolous only when the plaintiff

fails to present a claim with an arguable or rational basis in

law or fact. See id. at 325. Claims which lack such a basis

include those for which the defendants are clearly entitled to

immunity and claims of infringement of a legal interest which

does not exist, see id. at 327-28, and “claims describing

fantastic or delusional scenarios, claims with which federal

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district judges are all too familiar.” Id. at 328; see also

Denton v. Hernandez, 504 U.S. 25 (1992). A complaint may not be

dismissed for failure to state a claim upon which relief can be

granted if the complaint contains “enough facts to state a claim

to relief that is plausible on its face.” Bell Atlantic Corp. v.

Twombly, 550 U. S. 544, 570 (2007). Pro se complaints are to be

construed liberally in favor of the pro se party. Haines v.

Kerner, 404 U.S. 519 (1972). The complaint will be evaluated

under these standards.

II. 

The following information is taken from the documents

attached to the form complaint. Mr. Mohammed founded the Mission

for Children’s Health Africa in April, 2005. This non-profit

organization transports children from Ghana to the United States

for medical treatment. In the typical scenario, a child stays

with a host family, receives pro bono medical care, and then

returns to Ghana. In April, 2009, Mr. Mohammed brought Mohammadu

Alhassan to the United States for treatment at Nationwide

Children’s Hospital in Columbus, Ohio. The now twelve-year old

child, who was orphaned at age two, has been staying in Lewis

Center, Ohio, with a host family, Michael and Lia Lofreso, while

undergoing reconstructive surgery. The child is in the United

States on a temporary medical visa and, in accordance with the

terms of the program established by Mr. Mohammed, is required to

return to Ghana. The LoFresos were made aware of this

requirement when they agreed to host the child. The Lofresos,

however, have expressed a desire to adopt the child and did not

return him to Mr. Mohammed at the designated time and place in

May, 2011. Mr. Mohammed is the child’s legal guardian and is

responsible for renewing the child’s visa with the United States

Citizenship and Immigration Service. Mr. Mohammed has filed this

action seeking a Court order directing the Lofresos to return the

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child to him so that he may return the child to Ghana. As stated

by Mr. Mohammed, he seeks “[t]o obtain custody of the child

(MOHAMMADU ALHASSAN) to return him to his home country Ghana West

Africa.” 

In addition to the documents attached to the form complaint,

Mr. Mohammed has filed a letter, several pictures, and two

statutory declarations from individuals stating that the child

should not be adopted by the Lofresos but should be returned to

Ghana.

III.

 In order for this Court to grant relief, it must have

jurisdiction over the parties' dispute. Federal courts are

courts of limited jurisdiction, and if a case does not fall

within the categories of cases described in Article III, section

2 of the United States Constitution and also within the

jurisdiction granted to the Court by Act of Congress, the Court

may not hear the case. Generally, for civil matters, the United

States District Courts have jurisdiction to resolve either cases

arising under federal law, see 28 U.S.C. § 1331, or cases arising

under state law if the parties to such cases are citizens of

different states and the amount in controversy exceeds $75,000.

See 28 U.S.C. § 1332. 

The form complaint itself does not contain much specific

information relating to the type of claim Mr. Mohammed is seeking

to assert here. On the form complaint, however, Mr. Mohammed

checked the box indicating that this Court’s jurisdiction arises

under 28 U.S.C. §1343(3). The most common type of claim asserted

by plaintiffs alleging such jurisdiction is a claim under 42

U.S.C. §1983. That statute prohibits a state or local

governmental official from depriving a person of his or her

constitutional rights. In order to state a claim for relief

under §1983, the defendant or defendants must be governmental

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officials or must otherwise have engaged in “state action,” and a

complaint must be filed in the federal court not later than two

years after the events about which the plaintiff complains. See

Flagg Bros. v. Brooks, 436 U.S. 149, 155, 98 S.Ct. 1729, 56

L.Ed.2d 185 (1978); Browning v. Pendleton, 869 F.2d 989 (6th Cir.

1989). 

While §1983 claims may frequently be brought under 28 U.S.C.

§1343(3), the defendants in this case appear to be private

citizens who are not state actors and have not engaged in “state

action.” Rather, as discussed above, the child appears to be

living with the Lofresos as a result of a private agreement

entered into by the Lofresos and Mr. Mohammed or his non-profit

organization. Consequently, the complaint cannot be construed as

stating a claim for relief under 42 U.S.C. §1983.

Instead, the focus of Mr. Mohammed’s claim appears to be his

request to obtain custody of the child from the Lofresos. Under

this circumstance, a fair reading of the complaint may be that

Mr. Mohammed is claiming that the child is in the custody of the

Lofresos in violation of the Constitution or laws or treaties of

the United States. To the extent that his complaint may be read

in this way, Mr. Mohammed may be attempting to state a claim for

habeas corpus relief pursuant to 28 U.S.C. §2254(a). See Loss v.

Eggleston, 877 F.2d 62, 1989 WL 65531 (6th Cir. June 19, 1989)

(unpublished table decision). That statute provides as follows:

The Supreme Court, a Justice thereof, a circuit judge,

or a district court shall entertain an application for

a writ of habeas corpus in behalf of a person in

custody pursuant to the judgment of a State court only

on the ground that he is in custody in violation of the

Constitution or laws or treaties of the United States.

However, even if the Court construed Mr. Mohammed’s

complaint as attempting to state a claim for habeas relief

pursuant to §2254, that statute cannot confer federal court

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jurisdiction under the circumstances presented here. Lehman v.

Lycoming County Children’s Services Agency, 458 U.S. 502, 516

(1982); see also Miller v. Commonwealth of Kentucky Cabinet for

Health & Family Services, 2005 WL 3050465 (W.D. Ky. Nov. 14,

2005). First, according to the information provided by Mr.

Mohammed, the child is not in the “custody” of the Lofresos

pursuant to any state court judgment but rather as a result of a

private agreement. Moreover, even if Mr. Mohammed were

challenging a state court judgment relating to the custody of the

child, the Court would not have jurisdiction over such a claim

for habeas relief. The availability of such relief is generally

limited to challenges to state court criminal convictions which

resulted in “substantial restraints not shared by the public

generally.” Id. at 510. 

Accordingly, habeas has never been considered “a generally

available federal remedy for every violation of federal rights”

and “federal habeas has never been available to challenge

parental rights or child custody.” Id. at 510, 511. In Lehman,

a mother whose parental rights were terminated under state law

sought a writ of habeas corpus, challenging the constitutionality

of the state statute under which the state had obtained custody

of her children and terminated her parental rights. As the

Supreme Court explained,

Children [] placed in foster homes pursuant to an order

of a [] court, [] are not in the “custody” of the State

in the sense in which that term has been used by this

Court in determining the availability of the writ of

habeas corpus. They are in the custody of their foster

parents in essentially the same way, and to the same

extent, other children are in the custody of their

natural or adoptive parents. Their situation in this

respect differs little from the situation of other

children in the public generally; they suffer no

unusual restraints not imposed on other children....

The “custody” of foster or adoptive parents over a

child is not the type of custody that traditionally has

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been challenged through federal habeas.

Id. at 510-511. 

 Here, Mr. Mohammed has alleged that the child currently is

in the custody of the Lofresos as a result of a private

agreement. Mr. Mohammed does not allege that the child is in

state custody or is suffering “unusual restraints not imposed on

other children” as might suggest grounds for habeas relief. He

has not alleged that the child is a prisoner or suffers any

restrictions imposed by a criminal justice system. In essence,

Mr. Mohammed has not alleged any deprivation of liberty to

differentiate significantly the child’s situation from that of

the children in Lehman. As the Supreme Court made clear in

Lehman, the federal writ of habeas corpus is not intended for use

in resolving “custody” disputes between private parties. While

the Lehman court expressed “no view as to the availability of

federal habeas when a child is actually confined in a state

institution,” that also is not the situation presented here. 

Lehman, at 511 n.12. The Court notes that Mr. Mohammed would

fare no better if the Court were to consider his claim under 28

U.S.C. §2255 - authorizing federal court collateral review of

federal court decisions - for essentially the same reasons

discussed above. Consequently, the Court is without jurisdiction

to consider any claim for habeas relief relating to the child.

Finally, the Court notes that Mr. Mohammed filed this action

following the Lofreso’s alleged failure to return the child as

agreed. To the extent that Mr. Mohammed may be asserting a

breach of contract claim based on the Lofreso’s failure to abide

by the agreement, the Court also lacks jurisdiction over such a

claim. Such a breach of contract claim arises under state law,

not federal law. As stated above, in order for the Court to

exercise diversity jurisdiction over state law claims, the

parties must be citizens of different states. It appears from

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the complaint that Mr. Mohammed and the Lofresos are all citizens

of Ohio. Consequently, this Court cannot exercise diversity

jurisdiction over any breach of contract claim. 

One additional note is in order. Under the domestic

relations exception, federal courts have no power to issue

divorce, alimony, and child custody decrees. Ankenbrandt v.

Richards, 504 U.S. 689, 703 112. S.Ct. 2206 (1992). As explained

by the Supreme Court in Ankenbrandt, for a number of reasons

including efficiency and expertise, those types of issues are

more properly considered by state courts. Id. at 704. Given the

status of the parties in this case as explained by Mr. Mohammed,

the complaint does not appear to raise any domestic relations

issue. However, to the extent that it could be construed

otherwise, the domestic relations exception provides an

additional limitation on the Court’s ability to address Mr.

Mohammed’s request for custody. 

In short, there does not appear to be any basis on which Mr.

Mohammed may legitimately proceed against these defendants in

federal court. That being so, this case should be dismissed

under 28 U.S.C. § 1915(e)(2).

IV.

 For the above reasons, it is recommended that this case be

dismissed pursuant to 28 U.S.C. §1915(e)(2), without prejudice to

Mr. Mohammed’s ability to pursue appropriate relief in a state

court. Should this recommendation be adopted, a copy of the

complaint, the Report and Recommendation, and any dismissal order

should be mailed to the defendants. 

 Procedure on Objections

If any party seeks review by the District Judge of this

Report and Recommendation, that party may, within fourteen (14)

days of the date of this Report, file and serve on all parties

written objections to those specific proposed findings or

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recommendations to which objection is made, together with

supporting authority for the objection(s). A judge of this Court

shall make a de novo determination of those portions of the

report or specified proposed findings or recommendations to which

objection is made. Upon proper objections, a judge of this Court

may accept, reject, or modify, in whole or in part, the findings

or recommendations made herein, may receive further evidence or

may recommit this matter to the magistrate judge with

instructions. 28 U.S.C. § 636(b)(1).

The parties are specifically advised that failure to object

to the Report and Recommendation will result in a waiver of the

right to have the district judge review the Report and

Recommendation de novo, and also operates as a waiver of the

right to appeal the decision of the District Court adopting the

Report and Recommendation. See Thomas v. Arn, 474 U.S. 140, 106

S.Ct. 466, 88 L.Ed.2d 435 (1985); United States v. Walters, 638

F.2d 947 (6th Cir. 1981).

/s/ Terence P. Kemp 

United States Magistrate Judge

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